Council tackles marijuana clubs

By Wm. Duke Harrington

Staff Writer

SOUTH PORTLAND — While one South Portland City Councilor is expressing enthusiasm for the cash cow marijuana might become to city coffers, his peers are taking a dim view of at least one potential use for the newly legal product — as the organizing focal point of socalled social clubs.

“We could really benefit as a city. We could be ahead of Portland in drawing some tourist dollars,” Councilor Eben Rose said during a March 8 workshop, at which city leaders considered how zoning and licensing rules might need to change to allow for the manufacture of marijuana products within city limits, as well as cultivation and testing of the plant for retail sale.

The balance of the council went on record during the meeting as supporting most commercial uses of marijuana, including the opening of specialty shops that sell most forms of it. After all, the new law adopted by voters in November would allow them to enact a local ban on retail operations. However, several on the council parted with Rose when it came to licensing clubs at which marijuana could be not only purchased, but consumed in a public setting.

“I’m not necessarily in love with the idea that marijuana is going to be sold here, but I can live with it and the other (uses) because the people said they wanted it,” said Councilor Maxine Beecher. “But I’d be real herd-pressed to do the social club. I just can’t without some real thoughtful licensing and whatever.”

“Whether we’re ready for it emotionally or not, it’s coming around the bend, regardless of what happens on the federal level,” Councilor Claude Morgan said, referencing reported opposition in the new Trump administration to following the lead of at least 26 states on legalization.

“I think the thing to do tonight and in future workshops is to treat this respectfully, as something our residents have voted for,” Morgan added.

In 2014, South Portland residents adopted a local initiative to legalize marijuana, with 52.4 percent in favor – 6,326 to 5,755. In the vote for statewide legalization held this past November, 57.6 percent of city voters said yes again – 8,504 to 6,253.

The new law, which went into effect Jan. 30, allows adults 21 and older to possess as much as 2.5 ounces of marijuana and to grow their own plants. However, establishing facilities to grow, test and sell marijuana products, subject to a 10 percent state sales tax, awaits state and city action on a licensing framework. On Dec. 19, the South Portland City Council adopted a moratorium on granting business licenses for marijuana-related operations to buy time to get its ducks in a row.

That six-month ban, backdated to the first council workshop on the topic, expires May 19. The council has indicated a high probability it will extend the moratorium an additional six months, to Nov. 19. That’s partly because the Legislature has adopted a moratorium of its own. Although the law approved by voters called on the state to have all of its licensing rules in place by mid-September, on Jan. 27 the governor signed a bill that will delay state implementation of new retail rules until Feb. 1, 2018.

Still, with strong local support for decriminalizing marijuana, the city council has expressed zero interest in taking advantage of a provision in the law that would allow municipalities to enact a ban on retail operations, in much the way it has with consumer fireworks.

At the March 8 workshop, Assistant City Manager Josh Reny said city staffers needed guidance from the council on its view of where retail pot operations should be allowed, and under what conditions.

“We’re trying to wrap our heads around this, as this is going to be a new business coming to Maine that is obviously going to have a tremendous impact,” he said. “Because this is a new thing, we really need to refine and codify ordinances. It would be prudent for us to spell out exactly what this industry is.”

For example, in addition to limiting where a marijuana store might be located, the council could set a limit on how many stores might be allowed to open.

“We’re not sold on that idea,” Reny said of a license limit. “We think that between licensing and zoning requirements, that will be more effective than trying to set a cap. From what we’re learning, that gets very complicated when you try to set a finite number of business that are allowed. It makes the license for each of those businesses worth a lot of money.”

“This is a big money industry, that was drilled into us,” City Planner Tex Haeuser said, referring to a Feb. 28 Maine Municipal Association training for municipal staff on the new law, put on by Portland law firm Drummond Woodsum.

“Because of the money at stake, if there’s something for somebody to litigate, they may well go ahead and do it. So, the more we get creative with our restrictions and what not, the more we may need to be thinking about what our defense is going to be,” Haeuser said.

“There is a lot inquiry into large warehouse space right now in the greater Portland area, to the point where it may impact the price per square foot. So, this really is an industry,” Morgan agreed, saying that those within the banking industry, in which he serves during the day, have done “a lot of belly-button examining” since November on whether to issue loans for marijuana-based businesses.

Councilor Linda Cohen, who also has worked in the banking field, said she is on board licensing marijuana shops. They should be permitted along the same lines as liquor businesses. Currently, the city charges $2,100 to permit a Class A lounge, she said.

“That works for me,” she said. “We need to be well compensated.”

“And let’s remember, not everyone wanted this,” Cohen said. “But I think even the ones who did want it expect we are going to do something responsible as far as where we place these facilities. We are not going to place a manufacturing plant in the middle of a residential neighborhood, or a retail store next to the Boys and Girls Club.”

Cohen’s fellow councilors agreed, although they held little debate on specific license restrictions, while punting entirely on zoning regulations, preferring to leave specifics to city staff. Instead, they spent the balance of the March 8 workshop wringing their collective hands over the possibility of social clubs. Although more than half of U.S. states now allow possession and sale of small amounts of marijuana, Maine is believed to be the first to consider allowing social clubs where people could smoke or eat marijuana in a public setting.

“The product being what it is, it’s hard for me to imagine a loud club scene,” Morgan said.

Rose agreed, predicting a marijuana club would cater to those who “seek creativity and heightened awareness,” from marijuana use. A South Portland social club would not be like Bentley’s Saloon in Arundel, Rose said, referring to that establishment as “a biker bar.”

“To say that these are the same kind of cultures does not recognize some of the changes that have gone on in the kind of out-of-the-closet marijuana consumption culture we have these days,” Rose said. “It’s not just party time. Not everything has to be a Grateful Dead show.

“And if these things open up first in Portland or Westbrook, then our residents are in danger of driving,” Rose said. “What you want is no parking at all with something like this. You want to encourage people to walk. You want them to be in a village type setting.”

“Put it near Scratch Bakery and their sales might go up,” Rose said, drawing a laugh. “There are ancillary business benefits. There are reasons to embrace this as the burgeoning business it is. It’s going to be hard to put the genie back in the bottle.”

In addition to stumping for a downtown location for any permitted social club, Rose urged fellow councilors, as well as residents in the audience at the March 8 meeting, to call their local legislators to voice support for a localoption sales tax not circulating in Augusta.

“If we can collect sales tax on this, we could realize a great benefit,” Rose said.

“I wouldn’t hold your breath,” Morgan replied. “We’ve tried this in many permutations over the years and it’s always failed.”

Cohen also cast doubt on Rose’s idea of permitting marijuana social clubs without the usual parking spaces required for most businesses.”

“I’m afraid that (walking) wouldn’t happen, people would be parking all over the neighborhood instead,” she said.

Meanwhile, Cohen cast the most wary eye of all on the council for Rose’s enthusiasm for social clubs.

“The jury is still out, the medical studies are still out, on the affects of marijuana smoke and second-hand smoke on the lungs and health,” Cohen said. “I really don’t want to go around saying we don’t want people smoking cigarettes in public places and then we’re the first ones to have this place where people go to smoke in public. To me, the two contradict each other.”

“And let’s be honest, when you are smoking marijuana recreationally, you are doing it for a high,” she said. “When you have a glass of wine, it doesn’t always get you high, unless maybe you haven’t eaten for a couple of days.”

That purposeful use of the product presaged an increased likelihood of crashes caused by impaired drivers leaving a marijuana social club, Cohen said.

“I know it’s difficult to determine if someone has had too much to smoke to drive a car,” Councilor Maxine Beecher agreed.

Meanwhile, Mayor Patti Smith, who questioned if marijuana plants should be allowed in the city’s many community gardens, latched on to Cohen’s comparison of marijuana smoke to tobacco fumes.

“I’d like to see a commitment to a safe and healthy air space for folks,” she said.

“If you don’t want to be subject to that smoke, you will not go into that type of institution,” Morgan offered.

Smith also wondered aloud about boat operation, given the number of marinas South Portland has.

“Is there potential that someone could take this on a boat and have a floating social club?” she asked.

“Even operating a private vessel might be considered consumption on public property,” Reny added. “And that is not allowed by the new law.”

Although the council provided few specifics on how city staffers should amend ordinances in ways the law allows for local action, Haeuser said he and his crew will continue their study, and offer a set of regulations for consider, possibly as soon as the March 28 planning board meeting. The planning board is legally required to weigh in on any zoning amendments, and must also conduct a public hearing before making a recommendation to the city council. That hearing could come as soon as the April 11 planning board meeting. That would then give the council time to consider suggested zoning changes, as well as the licensing and permitting rules Haueser, Reny,and City Clerk Emily Scully will present, in time to consider before the current moratorium runs out on May 8.

“I want to make sure we are making good progress and not having extension after extension after extension (of the moratorium),” Smith said.

However, state law allows for just one renewal of a 180-day moratorium. That means South Portland will need to have something in place by Nov. 19, even though the state may not have enacted its own rules by that time.

Whether South Portland will enact a ban on marijuana social clubs is unclear. The March 8 meeting, appeared to result in a 2-2-1 split, with Morgan and Rose for allowing such clubs, Beecher and Cohen breaking against them and Smith leaning that way, but reserving final judgment until after seeing what sort of licensing rules city staff may come up with. Councilors Brad Fox and Susan Henderson were absent from the meeting. Their votes could tip the scales in either direction.